Justice Watch: The Alliance for Justice Blog

May 2011

In its first day back from Memorial Day weekend, the Supreme Court today held that using material witness warrants as a pretext for detaining alleged terrorism suspects, with no probable cause to arrest for criminal wrongdoing, does not violate the Fourth Amendment in Ashcroft v. al-Kidd.

Eight justices unanimously held that former Attorney General Ashcroft was entitled to qualified immunity from suit, because there was no clearly established constitutional law prohibiting the pretextual use of material witness warrants to preventively detain terrorism suspects. However, Justice Scalia’s majority opinion went much further, holding that the government’s subjective intent in obtaining a material witness warrant is irrelevant under the Fourth Amendment. In other words, so long as the government’s material witness warrant is validly obtained, it does not matter whether the government actually intends to use a detainee as a witness in a prosecution, even if the warrant was a pretext to arrest a suspected terrorist.

The case arose in the aftermath of the September 11, 2001 terrorist attacks. Attorney General Ashcroft “authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations . . . with no intention of calling most of these individuals as witnesses.”

Abdullah al-Kidd, a native-born American citizen who was a college football star at the University of Idaho, was targeted for surveillance and ultimately detained in 2003, while boarding a flight to Saudi Arabia to pursue a doctoral degree in religious studies. Al-Kidd allegedly had information “crucial” to the prosecution of Sami Omar al-Hussayen, but was never called as a witness during his detention or supervised release, which lasted fourteen months and ended in al-Hussayen’s acquittal on all charges. As explained by Justice Ginsburg,

Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarceration, kept in high-security cells lit 24 hours a day, strip-searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist.

While there was no probable cause to arrest al-Kidd for criminal wrongdoing (and not even the suspicion of wrongdoing), the Obama Administration defended Ashcroft, with Acting Solicitor General Neal Katyal claiming in oral argument that al-Kidd’s “lawsuit seeks personal money damages against a former attorney general of the United States for doing his job.”

Under Harlow v. Fitzgerald, qualified immunity protects government officials from suits for money damages, unless a plaintiff can show that (1) the official violated a statutory or constitutional right, and (2) that the right in question was clearly established at the time of the alleged violation. The Ninth Circuit held that Ashcroft was not shielded from suit for abusing the material witness statute as a pretext for arresting terrorism suspects absent probable cause of wrongdoing. Had the majority limited its opinion to the second prong – that there was no clearly established constitutional rule forbidding the pretextual use of material witness warrants – the Court would have produced a single, unanimous opinion. However, Justice Scalia took the unnecessary step of assuming the validity of the material witness warrant in order to announce a new constitutional rule. Under the majority’s new formulation, so long as a magistrate signs a material witness warrant under objectively reasonable circumstances – that is, if it “may become impracticable to secure the presence of the [witness] by subpoena” – the Attorney General can never be held accountable for harsh, pretextual detentions of American citizens.

Each of the concurring opinions noted that the validity of al-Kidd’s material witness warrant was unclear at best. The federal government omitted and misrepresented crucial information to secure the warrant. For example, the government submitted an affidavit claiming that al-Kidd had purchased “one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000,” when he had actually purchased a round-trip coach ticket costing $1,700. Furthermore, “the Magistrate Judge was not told that al-Kidd’s parents, wife, and children were all citizens and residents of the United States,” and that al-Kidd had been cooperative with FBI agents in several earlier interviews. As Justice Ginsburg concluded in her concurring opinion, “there is strong cause to question the Court’s opening assumption – a valid material-witness warrant – and equally strong reason to conclude that a merits determination was neither necessary nor proper.”

Justice Kennedy’s concurring opinion explained that the majority opinion did not uphold the validity of al-Kidd’s material witness warrant, leaving this question to lower courts on remand. Thus, as both Justice Ginsburg and Justice Sotomayor express in their concurrences, the majority opinion, decided on the assumption of a valid warrant, clearly overreached. Chief Justice Roberts, along with other conservatives on the Court, have often stated their preference for “limited” opinions that only decide the case at hand. Here, the majority decided a hypothetical; once the Court decided that there was no clearly established constitutional right, Attorney General Ashcroft was entitled to qualified immunity and nothing further was needed to resolve his appeal.

Nevertheless, the Court crafted a new rule, holding that an American citizen can be detained as a “material witness,” even if the federal government has no intention of ever calling that individual to testify. Brutally harsh “preventive” detention, which in Justice Ginsburg’s view presented “a grim reminder of the need to install safeguards against disrespect for human dignity,” has been given new protection by the conservative wing of the Supreme Court. While al-Kidd has settled some of his claims against lower-level officials and his suit against Attorney General Ashcroft is not entirely foreclosed (since it is still possible that the lower courts will find that the underlying warrant was not validly obtained), an effort to hold high-level government officials accountable for the ongoing, post-9/11 assault on civil liberties was dealt a strong blow by the Court.

The LA Times this week examined the issue of ethics at the Supreme Court.

The Code of Conduct for United States Judges was established by the U.S. Judicial Conference and covers all federal lower court judges. Among other things, the code says that “a judge should avoid impropriety and the appearance of impropriety in all activities.” Supreme Court justices insist that they too are guided by the code, but when it comes to ensuring public confidence, voluntary compliance is no substitute for mandatory adherence.

Earlier this year, Rep. Chris Murphy of Connecticut introduced a bill that would place the nine justices of the Supreme Court under the same Code of Conduct that applies to every other federal judge.

Today the Supreme Court’s conservative majority upheld Arizona’s anti-immigrant Legal Arizona Workers Act in Chamber of Commerce v. Whiting. The Court held that the federal Immigration Reform and Control Act (IRCA) of 1986 did not preempt the state from revoking business licenses or mandating that employers’ check their employees’ immigration status using the federal E-Verify database.

In an effort to crack down on illegal immigration, Arizona passed a law in 2007 that punishes employers that hire undocumented workers by revoking their business license – referred to as the “business death penalty.” The law also requires employers to use the federal E-Verify system – an online employment verification database. The Chamber of Commerce and immigrant rights’ organizations teamed up as unlikely allies to oppose the Arizona law, arguing that it is expressly and impliedly preempted by federal law. The IRCA expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit” undocumented workers.

Arguing that the Arizona statute falls within the licensing exception (italicized above), the majority rejected the Chamber’s argument that the definition of “licensing” should come from the context of the statute. Citing the dictionary definition of “license,” the majority concluded that Arizona’s sanctions of stripping businesses of the licenses they need to do business in Arizona was not preempted by the federal statute. The decision also upheld the Arizona provision mandating the use of E-Verify, stating that “the requirement is entirely consistent with the federal law” because “the consequences of not using E-Verify under the Arizona law are the same as the consequences of not using the system under federal law.”

In an ironic twist following the Court’s recent pro-corporate decision in AT&T Mobility v. Concepcion, the majority cited the supposedly difficult burden that a party must meet to prove that federal law preempts state law, stating: “Our precedents establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act. That threshold is not met here.” In AT&T Mobility, the majority tossed aside a California law (and more than 20 other similar laws from other states) designed to protect consumers from being cheated by corporations on the grounds that a 1922 federal statute preempted it. When evaluating a state law that threatened the rights and job opportunities of legal immigrants, however, the Court’s conservative majority was suddenly reluctant in Chamber of Commerce v. Whiting to find federal preemption.

Justice Breyer responded in a compelling dissent that “neither dictionary definitions nor the use of the word ‘license’ in an unrelated statute can demonstrate what scope Congress intended the word ‘licensing’ to have as it used that word in this federal statute.” Breyer stated that Congress set equivalent penalties for hiring undocumented immigrants and for discriminating against prospective employees. He argued that the purpose of this balance was to discourage employers from violating immigration laws while also discouraging them from making unlawful assumptions about the immigration status of applicants based on racial or linguistic factors. Arizona’s law upsets this careful federal balance, Breyer added, noting that it “will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens—without counterbalancing protection against unlawful discrimination.” Breyer summed up his view that that federal law preempted Arizona’s statute in the following passage.

Why would Congress, after deliberately limiting ordinary penalties to the range of a few thousand dollars per illegal worker, want to permit far more drastic state penalties that would directly and mandatorily destroy entire businesses? Why would Congress, after carefully balancing sanctions to avoid encouraging discrimination, want to allow States to destroy that balance? Why would Congress, after creating detailed procedural protections for employers, want to allow States to undermine them? Why would Congress want to write into an express pre-emption provision—a provision designed to prevent States from undercutting federal statutory objectives—an exception that could so easily destabilize its efforts? The answer to these questions is that Congress would not have wanted to do any of these things. And that fact indicates that the majority’s reading of the licensing exception—a reading that would allow what Congress sought to forbid—is wrong.

Justice Sotomayor also filed a dissent in which she argued that federal law should preempt Arizona’s statute. Sotomayor stated that IRCA’s denial of work-eligibility status information to the states is inconsistent with an intent to allow states to enforce an immigration law like Arizona’s. She stated that, “[h]aving constructed a federal mechanism for determining whether someone has knowingly employed an unauthorized alien, and having withheld from the States the information necessary to make that determination, Congress could not plausibly have intended for the saving clause to operate in the way the majority reads it to do.” Sotomayor added that Congress expressly intended to create a uniform system of federal immigration enforcement when it enacted the IRCA – indeed, the statute was designed to supplant a patchwork of conflicting state laws in existence at the time – so Arizona’s state-specific immigration provision should be preempted for thwarting this congressional intent.

Reading the saving clause as the majority does subjects employers to a patchwork of enforcement schemes similar to the one that Congress sought to displace when it enacted IRCA. Having carefully constructed a uniform federal scheme for determining whether a person has employed an unauthorized alien, Congress could not plausibly have meant to create such a gaping hole in that scheme through the undefined parenthetical phrase “licensing and similar laws.”

Justice Sotomayor also found that Congress expressly rejected the idea of mandating E-Verify when it set it up as a voluntary system.

In 2003, when Congress elected to expand E-Verify to all 50 states but declined to require its use, it cited to a congressionally mandated report concluding that the annual cost of the pilot program was $6 million, the annual cost of a nationwide voluntary system would be $11 million, and the annual cost of a nationwide mandatory program would be $11.7 billion.

Justice Breyer noted that E-Verify is inherently unreliable, with an 18% of requests returning false “unemployable” reports. In one fiscal year, 46,921 workers were initially rejected but later confirmed as work authorized.

The Supreme Court could soon hear a case involving a separate anti-immigrant Arizona statute that threatens the rights of Arizona residents. The Ninth Circuit in United States v. Arizona recently blocked enforcement of a law requiring police officers to stop certain individuals whom the police suspect to be illegal immigrants.

The Supreme Court’s decision to uphold the Legal Arizona Workers Act lays bare the Court’s willingness to selectively use the preemption doctrine to support its activist conservative agenda.

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